Aging Options Blog : Washington Estate Planning Lawyer & Attorney : Rajiv Nagaich : Aging Options Law Firm : WA Elder Law, Wills & Trusts

What can be done when both parents are in declining health, and do not want to leave their house?  
                                        
If power of attorney has not been prepared, a guardianship is something to consider. A guardianship is where an attorney will go to court, and have the parents declared incompetent.  However, this can be considered by the parents to be a slap on their face.  And in this case, the court may not impose a guardianship due to the fact that the parents likely have enough mental capacity to understand the decisions they are making and the risks they are taking.  And so, in my opinion, a guardianship is a poor solution.

Even with power of attorney, children may not be in a position to enforce their decision to move the parents to an assisted living facility, due to the fact that the power of attorney can be revoked.  

Another solution would be to try to talk to the parents, and convince them to move. But this may end up alienating the relationship between the children and the parents.  The children may need to try to understand that the parents may not consider their advice in the same manner that they would consider advice from someone in the professional field.  This is one situation where the care and management aspect is so appropriate, such as a care manager or social worker, because the parents do not want to leave their home although the children do not consider it a safe situation. 

Care managers or social workers help to create a plan that can work to provide things such as a personal emergency response system that allows them to continue to live safely at home. This may be a solution that both parties can agree with. 
 

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One of my client Vicky calls to ask for advice regarding her aging father living in North Dakota in a nursing home. Stepmother rarely visits Dad in the nursing home and daughter would like to bring Dad to Washington so she can help care for him. Vicki relates that in a previous conversation when she had suggested the move, her dad had raised concerns over not being able to see his wife and thus refused the move. Stepmom has the power of attorney over Dad and may not be cooperative. Dad has been married to stepmom for several years.
 

Here is my advice to Vicky, you are dealing with a sticky wicket. I admire your dedication to your father. But the fact is that so long as your dad has any capacity to understand the issue and form an opinion about it, you will have no say-so. This is about your dad, not you. Your dad made the decision to marry your stepmom and give her the authority to make decisions on his behalf if he became incapacitated. People do strange things. As hard as it is for you to see your dad alone in the nursing home without visits from your stepmom, that is the choice your dad has made. Legally, you can seek guardianship over your dad, but guardianship will be granted only if you are able to show that your stepmom is negligent in her duties as agent under the power of attorney to your dad. Not visiting your dad regularly may not be enough for you to be successful.

My advice would be to discuss this issue with your dad and stepmom and propose that you are willing to relieve your stepmom of the overwhelming responsibility of caring for your dad. I am sure that somewhere deep down, your stepmom knows that she is not being a good support person and may be willing to give up her role as agent under power of attorney. If that does not work, I would have you think hard about your legal right to seek guardianship. Unless your dad approves and will not suffer from losing his ability to see your stepmom, I would advise against it. What is the point of moving your dad if he is going to be miserable? He will likely resent your involvement and die a broken-hearted man. Resolve yourself to visiting your dad as often as you can and letting him know how special he is. And keep working on a solution that is acceptable to your stepmom as well.
 

Next, should you decide to move your dad, involve a care manager from the start to help you understand your options about his care. If you are willing to bring him to your home, the care manager will assist in developing a care plan that will allow this to happen without becoming overly burdensome to you alone. If living at home is not an option, the care manager will guide you through the process of selecting an appropriate housing alternative that will address your dad’s needs and resolve your concerns.

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Most simply put, elder law is a legal specialty focusing on the legal needs of seniors. But that begs the question a bit. What are those legal needs? How do they differ from the legal needs of non-seniors? How do we define 'seniors'?

Unfortunately, many of the legal issues seniors face arise from their loss of mental capacity or the onset of physical incapacity. The increased likelihood that we will need care as we age, especially after age 85, the failure of the American health care system to provide for such care under standard insurance, the high cost of such long-term care, and the complicated and piecemeal public 'system' of subsidizing long-term care combine to create the need for legal expertise to guide seniors either experiencing or anticipating long-term care needs. This is the core service of elder law.

However, elder law also includes more standard estate planning, simply with an eye towards the future need for long-term care, and more urgency given the higher age and likely sooner death of the client. Elder law also includes guardianships and conservatorship proceedings over seniors who may have lost or be losing their mental capacity (or defense against such proceedings), protection of seniors from those who may take advantage of them, the resolution of disputes with nursing homes and assisted living facilities over care and related issues, and the resolution of disputes among family members about the care of their parents and the financial cost of such care.

The term 'seniors' often refers to anyone over age 65. While individuals age at different rates, as a group there's a huge difference between those between 65 and 85 and those over 85. The vast majority of those in the first age group are healthy and enjoying their so-called 'golden years', while over half of those in the latter group need some assistance getting through the day. In fact, often it is those in the first group who are caring for their parents in the second group. Elder law attorneys help those in the first group prepare for their post-golden years, and help those in the second group deal with the legal and health care issues they come up against.

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